President Trump, Big Tech, and Freedom of Speech

If these companies can ban the President of the United States or those who sympathize with him, is there any limit to who they can’t ban?

The pace at which events have unfolded over the past several days has made it incredibly difficult to keep up. I’m sure many others feel the same way. There’s much one could say about these events, and there are a host of issues that could be addressed, but I want to focus on the one area I am concerned about long term: the freedom to voice concerns, the ability to offer meaningful dissent from generally accepted views—the ability to question or challenge mainstream narratives.

At the outset, it must be acknowledged that the First Amendment does not directly apply to Big Tech companies, as they are private companies and not government entities. On this basis many have been quick to point out that the First Amendment only protects freedom of speech from infringement by the government, and this is generally correct. However, some recent precedent and other arguments should also be considered:

(1) First, take note of the concerns of counsel from the ACLU (and others in this article).

(2) Second, consider this commentary from the HuffPost on the Supreme Court’s 2017 decision in Packingham v. North Carolina:

“The importance of the ruling is in its forward-looking perspective. The ruling does not address the question of whether or not Facebook can ban certain speech directly, but does confirm the idea that entities like Facebook, by their size and prominence, take on a larger role in our society (i.e., the “modern public square”) that cannot be ignored. One can easily imagine Justice Kennedy’s opinion used in a future case challenging Facebook or some other private entity’s restrictions on speech.

And despite the willingness of many to try and dilute the ideas of free speech by citing the public-private divide, the Supreme Court is really doing little more here than enforcing the very old concept that free speech runs deeper than the Bill of Rights. It’s as much a philosophical argument as a legal one, not a bad thing for a nation founded on a set of ideas (and ideals.)

Free speech in America is an unalienable right, and goes as deep into the concept of a free society as any idea can. Though cited as far back as 1689 in England, the American version of all this was laid out most clearly by Thomas Jefferson, in the mighty Declaration of Independence, where he wrote of rights that flowed from his notion of The Creator, not from government, and thus were fixed. Abetting free speech is an obligation in a democracy in general.”

From “Facebook and the Public Square”

(3) Or this commentary from Vox and the executive director of Columbia University’s Knight First Amendment Institute:

“Facebook is not a part of the government. That means, unlike an American government body that has to abide by the First Amendment to the U.S. Constitution, it can kick off users who violate its rules.

However, says First Amendment scholar Jameel Jaffer, we should have a discussion about that power and whether Facebook should be able to decide who gets to speak.

‘The First Amendment is concerned principally with government power, but we resisted the centralization of control over the public square in the government because we didn’t like the idea of centralization of that kind of power,’ Jaffer said on the latest episode of Recode Decode with Kara Swisher. ‘Maybe we should resist the idea of centralizing power in the social media companies for the same reason.’”

And these next words from Jaffer are almost prescient:

“‘ Facebook has its own First Amendment rights here,’ Jaffer said. ‘It expresses them by ejecting Alex Jones from the platform. I think none of that would raise difficult questions if it weren’t for Facebook’s scale. It’s the fact that Facebook is so big and that Facebook arguably controls the public square or arguably controls a large segment of the public square.’ (emphasis added)

“That’s when I think free speech advocates start to get nervous about Facebook excluding people from the platform, especially when there’s an argument that they’re excluding people on the basis of viewpoint,” he added. “You can think whatever you want to about Alex Jones, but I worry not about Alex Jones, but about the next person or the next year. Who is it that Facebook is going to be excluding next year?” (emphasis added)

From “Should the First Amendment apply to Facebook? It’s complicated.”

Indeed, who will they be excluding next year? Or even next week? Make no mistake: Big Tech has teamed up over the past 4 days to virtually eliminate the social media presence of the President of the United States. Apple, Google, and Amazon have also worked to render access to alternative social media platform Parler completely inaccessible by Sunday at midnight. This summer I saw with my own eyes clear examples of social media companies (and even Google search results) limiting debate on treatments for covid, appropriate public health measures, and much more. How quickly the censorship of private speech and certain viewpoints has intensified!

Do we want to live in a world where very wealthy individuals, or very wealthy companies, control the speech of users based on viewpoint and on what these companies believe is acceptable? Because if these companies can ban the President of the United States or those who sympathize with him, is there any limit to who they can’t ban? To ask that question is to answer it.

Addendum:

Those who know more about the First Amendment may also rightly counter that, even if the First Amendment did apply to these companies, the First Amendment is not unlimited and does not protect incitement to commit violence. This is also a fair point and deserves a response. Many have quoted or paraphrased a line from the Supreme Court’s decision in the 1919 case of Schenck v. United States, where Justice Holmes’ remarked that “[t]he most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” What many fail to realize is that Schenck was at least partially overturned in the 1969 case of Brandenburg v. Ohio, where the Court made clear that “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” For more information on Schenck, Brandenburg, etc., see this concise article from The Atlantic (written in 2012):

“It’s Time to Stop Using the ‘Fire in a Crowded Theater’ Quote”

Some may still assert that President Trump’s statements on the morning of January 6th were enough to incite “imminent lawless action” such that the President’s speech should still be suppressed. I will not take time to discuss in detail whether the speech amounted to incitement (I do not believe it did), but if one assumes for the sake of argument that it did—that the President’s words were enough to justify both his tweets being removed and his subsequent suspension from his social media accounts—should this same standard not be applied to all other officials and individuals, regardless of viewpoint? Indeed, has the same standard been applied in recent months and years? For a recounting of instances that shows how different viewpoints have been treated differently in this regard, see some of the tweets by Larry Elder on January 9th.

In all, even if the First Amendment ultimately were found not to apply in these instances, I think we should all be concerned about how swiftly and completely the President of the United States and others have been silenced. To be clear, my aim in this post is not to defend the President or to talk about the events from Wednesday, as there are still many questions about what happened, who was responsible, etc. Rather, my aim is simply to raise deep concerns over the precedent social media companies and other Big Tech companies have set over the past 72 to 96 hours. I hope I’m wrong, but now that this bridge has been crossed, I fear what may be to come. May God have mercy on our nation and on its people.